Is the call for no-fault divorce just about speed?

Divorce|September 27th 2017

As any regular reader of this blog will be aware, I am a great proponent of no-fault divorce. I know I share this view with many family lawyers. It is also a key demand of Resolution, the association of family lawyers. In fact, it is easy to believe that support for no-fault divorce is almost universal.

But that is not the case. There are a number of influential voices that do not support the introduction of no-fault divorce, and they are not, as one might imagine, limited to the conservatives (with a small ‘c’) who see it as making divorce too easy and therefore devaluing the institution of marriage.

One such voice is that of Baroness Deech who, whilst not necessarily being an opponent of no-fault divorce, feels that it would achieve little. Those regular readers of this blog might recall that the Baroness has, over the years, had much to say on the issue of family law and its reform, including introducing her own private members’ bill aimed at reforming the law on financial settlements on divorce.

The Baroness’s latest contribution to the debate on no-fault divorce came last Friday in a post on her own blog, which goes under the wonderful title Lords of the Blog. In the post she argues that:

“…we already have no fault divorce. Separation for 2 or 5 years are grounds, no reasons needed. The grounds of adultery and unreasonable behaviour are immediate, subject to procedure, but involve allegations as specified. So the essence of the demand for reform is speed.”

She continues:

“…in a no-fault reform plan there must surely be some fixed time delay (6 months is proposed) between initiating the proceedings and the dissolution of the marriage, so the delay will become the new (irritating) obstacle, as it is now. Speed is everything.”

And she concludes:

“I suggest that all that is needed by way of substantive divorce reform of the “fault” grounds, is a slowing up, e.g. no decree absolute for 12 months from the service of the petition.”

But is it correct that the calls for no-fault divorce are just about the speed with which the parties can get divorced?

I suppose the answer to that is that it is and it isn’t.

To me, the central issue with the present system is the need to apportion blame. Yes, it is true that if you wait long enough (two years if the other party consents, five years if they do not) then you can have your divorce without needing to blame the other party for the breakdown of the marriage, but why should anyone be forced by the law to remain in an unhappy marriage for so long? And that’s where I fall (partly) into the arms of the Baroness’s argument: reduce that period sufficiently and it is no longer a problem (yes, I know that the Baroness is not suggesting that the present ‘no-fault’ ‘grounds’ be reduced to 12 months, but a no-fault proponent would argue that there should be only one ‘ground’, that would take considerably less than 2/5 years).

So the calls for no-fault divorce are about getting rid of blame and about the speed with which the parties can get divorced.

As for the length that period should be the Baroness, as mentioned above, seems to favour 12 months (I assume that would be her preference if no-fault were introduced), whereas others suggest 6 months. I’m not entirely certain that any fixed period is actually necessary – instead, perhaps the finalising of the divorce could just be dependent upon financial matters having been resolved, as in other jurisdictions? If there are no financial matters to be resolved, then why not allow the divorce to go straight through? Note that there is no requirement for arrangements for any children to be resolved before the divorce is finalised, as we now have a system that does not link arrangements for children with the divorce, since section 41 of the Matrimonial Causes Act was repealed.

In her post the Baroness gives several reasons why she thinks that the introduction of no-fault divorce would achieve little.

Firstly, she says that those who call for reform want to bring the law into line with the reality, which is that “consensual decrees are being obtained without substantiating the grounds”, and that after a law change the divorce rate rises, “and soon we find that divorce practice is again out of step with the law.” I’m not sure about this. For one thing I’m not sure that the introduction of no-fault divorce would lead to a long-term rise in the number of divorces (there may be a few more initially, in those cases where the petitioner no longer has to wait for 2/5 years). For another thing, I don’t see how, under a no-fault system, divorce practice can be out of step with the law. How can you be out of step with a system that does not need the attribution of blame?

Secondly, the Baroness says that:

“The adoption of no-fault divorce now would be likely to be portrayed by the media as New Quickie Divorce and would convey the impression that promises, responsibilities and children’s welfare come second to an easy end of obligations with a clear conscience.”

And this is where the Baroness comes perilously close to that conservative argument I mentioned above. I have never held to it. Couples are quite capable of committing to each other and to their children without signing a marriage certificate at all, and therefore to suggest that an ‘easier’ divorce system somehow devalues marriage is insulting to those who have chosen that way to commit to one another. Divorce doesn’t end responsibilities to children, as we all know. It may end certain obligations to the other spouse, but they ended anyway when the marriage broke down.

Finally, the Baroness argues simply that the real harm in divorce is to the children, and that our financial provision law is where reform should be directed. As to the former, surely quicker, blameless, divorce would be of benefit to the children? As to the latter, I’ll not get into the argument as to what reforms are required, but why not reform financial provision law at the same time as divorce law?

Image by Raúl A.- via Flickr under a Creative Commons licence

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